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Due Diligence: The Background Check Moves Front and Center

By Net Assets posted 08-14-2017 03:51 PM

  
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Human Resources |

From the archives: Schools update hiring processes as stakes, and compliance requirements, climb. “Hiring still comes back to your perception of the individual.”

Article by Darren Dahl

This article originally appeared in the January/February 2015 Net Assets magazine

When the news broke in 2011 about Jerry Sandusky, the Penn State University football coach convicted of sexually assaulting at least eight underage boys on or near university property, shock waves reverberated around the world. The fact that such crimes happened at a school made the news that much harder to process.

We didn’t want to bury our heads in the sand and pretend that bad things can’t happen even in good places. The world is a scary place now.

Audrey Fussell
St. John’s School

But the developments also opened the eyes of independent school professionals like Audrey Fussell, human resources director at St. John’s School in Houston, Texas. Fussell, who began working for the school in 2006, said the Penn State scandal was the impetus for a more thorough background check process for hiring new teachers and employees at the school, which has 1,350 students and a total employee count of 550.

“Our headmaster was fairly new at that time, and he is very much a realist,” says Fussell. “We didn’t want to bury our heads in the sand and pretend that bad things can’t happen even in good places. The world is a scary place now.”

While St. John’s School had always run a standard criminal background check on every new hire, Fussell helped lead the plan to enlist an outside vendor, Praesidium, a risk management company based in Dallas that specifically manages the risk of sexual abuse. The school now conducts full background checks on every new hire. This includes a county-wide criminal history search as well as two personal and two professional reference checks that ask specific questions related to child safety. Praesidium has also helped the school implement an online sexual harassment training program that keeps employees up to date on school policies.

In addition, Fussell says, St. John’s has rolled out a visitor management system from Raptor Technologies, which provides instant screening for registered sex offenders. All visitors to the school must run their driver’s license or other government-issued identification through one of half a dozen scanners installed near campus entrances, and then get a badge. When they leave campus, they must return to a scanner location to check out and return their badge. Parent visitors must also submit to that process, though the school allows them to secure an annual pass rather than having to submit to the ID scan on every visit.

Making the changes to the school’s systems and processes hasn’t been easy, Fussell admits. But they have been popular with parents. Perhaps just as importantly, they may have headed off potential job applicants who might have posed a danger to the school’s students.

“At the end of the day there is nothing more important than the safety of the children on our campus,” she says. “That’s why we’re all here.”

Background Checks: a Primer

It seems a week doesn’t go by without some story in the news about an abuse scandal involving a school. But among independent schools, just about each one does things a bit differently when it comes to screening individuals, whether new hires, parents, volunteers or tutors. Some boarding schools face the additional task of checking into the background of spouses and significant others who might live on campus.

Part of the reason for this variability is that the term “background check” is very broad and can mean different things to different people, says Sara Goldsmith Schwartz, the founder and president of Schwartz Hannum, a law firm that works with more than 175 private schools on numerous student and employment issues, including teacher and staff screening practices.

“It’s a very complex subject,” says Schwartz, noting that her firm offers a three-hour seminar teaching schools how to conduct background checks properly.

A typical background check can range from a few dollars up to about $150 per person depending on the vendor, what information is checked, and how many locations the candidate has lived in.

At a basic level, a background check should include a criminal records check on a county-by-county basis where the applicant has lived for the past seven years, a fingerprint search using the FBI national database, and a check of the national sex offender registry. Other common components of a background check can include a credit check, a motor vehicle records search, a drug test, and personal and professional reference checks.

The big question for a lot of schools, however, is whether they need to verify all that information for every position. In some cases, those decisions can come down to cost: A typical background check can range from a few dollars up to about $150 per person depending on the vendor, what information is checked, and how many locations the candidate has lived in.

Adding to the complexity, Schwartz says, is that schools must comply with different laws with regard to background checks. That’s why she counsels the schools she works with to follow three “golden rules”:

  • Know your state law. Every state has different requirements, says Schwartz, in terms of what checks are required and for whom. Schools that operate in more than one state also have to comply with each set of regulations. The website of your state attorney general may be helpful, as may certain agencies in some states.
  • Know the federal law. There are also federal rules every school should be aware of, such as Department of Transportation guidelines that apply to school bus drivers.
  • Do the right thing. In the end, says Schwartz, some state laws may be outdated, which puts the onus on the school itself to do more to protect its students, employees and the community. “Sometimes following best practices can be more demanding than complying with state law,” she says.

Putting Policies and Procedures in Place

Clearly a limitation of performing any background check is that no matter how extensive or varied the check, you can only determine what someone has been caught doing. It’s estimated that less than seven percent of sexual predators actually have a criminal record. “A background check is only as good as the arrest records,” says Marty Durham, the head of human resources at Seacrest Country Day School in Naples, Fla., which employs a staff of 90 to serve its 450 students. “If someone hasn’t been caught, then the background check isn’t as effective as a safeguard about what someone will do in the future.”

If someone hasn’t been caught, then the background check isn’t as effective as a safeguard about what someone will do in the future.

Marty Durham
Seacrest Country Day School

Just as importantly, it’s not enough for a school to simply run a background check as an end to itself. Administrators also need to have policies and procedures in place to deal with information revealed during a search—including giving the candidate a chance to refute or clarify anything that might turn up. “One of the real problems we see is that schools run these checks and then don’t have a system to interpret the data they get back,” says Schwartz.

Certainly, any candidate who shows up on a sex offender registry would be automatically eliminated from a hiring decision. But what about information that might not readily apply to that candidate’s job or a student’s safety?

What if, for example, a school learns that a candidate for a teaching position has a DUI on his record? How should that impact the decision to hire him, especially if he will never be driving students? Less ambiguous is if the DUI shows up on the record of someone like a sports coach or grounds maintenance person, both of whom would be more likely to drive students. “You need a black-and-white system that doesn’t rely on a lot of discretion when it comes to issues like those,” says Schwartz.

But hiring decisions can become more complicated when the employer requires more inclusive background checks. For example, every potential hire at The Masters School, an independent school in Dobbs Ferry, N.Y., with 650 students and 160 faculty and staff, is run through an extensive criminal background and sex offender check as well as a credit check.

Job offers are contingent upon successful completion of these checks, says Seymour Mintzer, the school’s director of human resources, and the school reserves the right in its sole discretion to require additional background checks during employment or volunteer assignments.

As part of the Fair Credit Reporting Act, the school provides a disclosure, acknowledgement and authorization for the background investigation, and the candidate’s signed authorization is required to conduct the check. The school also provides a copy of a New York Correction law regarding unfair discrimination, says Mintzer.

You have to take the lack of information with a grain of salt. Hiring still comes back to your perception of the individual.

Marty Durham
Seacrest Country Day School

The candidate can request a copy of the credit report from the vendor, and can contact the agency that reported the information in question to dispute anything on it. But even undisputed report information can be tricky, says Mintzer, especially because so many Americans had their credit dinged in the wake of the recession and housing market collapse. “We have to be very careful when it comes to weighing those results because context and the relationship to the job are so important,” says Mintzer. “Certainly if we were hiring a CFO, that’s clearly job-related and something we would look at right away. But for someone like a tutor, we would consider the results on a case-by-case basis.”

Further complicating matters for Mintzer is that laws in neighboring Connecticut prohibit employers from requiring an employee or job applicant to consent to a request for a credit report “as a condition of employment.” This can be confusing to applicants who are accustomed to Connecticut laws.

At Seacrest Country Day School, Durham adds that federal regulations also constrain whether certain information uncovered in a background check can be used in hiring decisions. Additionally, a snowballing movement called “ban the box” prevents employers in a growing number of areas from asking candidates if they have been convicted of a crime. Already, 13 states and Washington, D.C., ban the box, as do 67 municipalities, Schwartz notes.

Even reference checks have become more regulated, says Durham, and prior employers can open themselves up to liability for what they say about a candidate. The result is that references tend to say less. “You have to take the lack of information with a grain of salt,” says Durham. “Hiring still comes back to your perception of the individual.”

Regarding potential discrimination claims: One best practice is to bring in an attorney specializing in HR issues when working through hiring decisions, especially when background information is taken into account. Also, be sure that any background check findings that a supervisor wouldn’t need to see are stored separately from other information about a candidate or employee, in the same vein as personal health information, says Mintzer. “Keeping a good file maintains those lines that prevent people from seeing confidential information” and can also minimize the risk of making false assumptions.

To Update or Not to Update

Another hot button issue involves whether schools should perform updated background checks months or even years after the initial hire.

Schwartz thinks this “is an excellent practice for schools to implement,” and notes that some states even require it. In Durham, N.C., Duke School is contemplating this policy change. With 485 students and a staff of 142, the school performs complete background checks at the time of hire, including a check of DMV records. But it doesn’t check for updates after the fact, says Russell Rabinowitz, the school’s director of finance and operations.

Similarly, Rabinowitz says the school has been working with some sole proprietor contractors, such as plumbers and electricians, for as long as 20 years, and he wonders about best practices for running checks on them on a periodic basis. “Background checks play a key role in our due diligence process at the time of hire,” he says, “and it would be irresponsible not to conduct them at that time. But they just give you a snapshot. That’s why we’re considering implementing some follow-up mechanism.”

Does annual screening and random testing protect us more than being observant of how we function individually and together each and every day?

Maryann McGowan
he National Child Research Center

Conversely, some schools are not particularly fond of mandates to update background checks. Case in point: The National Child Research Center (NCRC) in Washington, D.C., is an 86-year-old preschool with 44 employees and 168 students ages 2.5 to 6. Its license is issued by the Office of the State Superintendent of Education, which is now implementing regulations that require anyone in a “safety-sensitive” position at a child development facility to undergo criminal background checks pre-employment and every two years thereafter.

This is a practice that Maryann McGowan, the school’s business manager, feels is disruptive to the school’s community. “It introduces a sense of mistrust,” she says, especially since the school historically sees very little turnover. Furthermore, the regulations require drug and alcohol testing pre-employment and “periodically, randomly and whenever there is reasonable suspicion of use" afterward, McGowan says. “Doing it as a baseline makes sense,” she notes. “But does annual screening and random testing protect us more than being observant of how we function individually and together each and every day?”

Moreover, McGowan adds, complying with these mandates can be costly. In 2014, fingerprinting, screenings and D.C.’s sexual registration clearance reports added approximately $2,000 to the school’s administrative expenses, she says. Drug and alcohol testing is anticipated to cost approximately $2,000 for the first year.

“We are all interested in doing whatever it takes to provide the children with the best educational experience in the safest environment possible,” says McGowan. “And we’re going to comply with the regulations to the best of our ability. We just question this as a best practice. As an independent school, we’d like to have the flexibility to look at those risks ourselves and make our own assessments.”

Durham of Seacrest Country Day School agrees that background screening in general, especially annual updates, significantly adds to overhead and the cost of employment. She performs annual DMV checks on her 30 sports coaches, for example, at $16 a pop. But, in the end, she sees not performing such checks as a far more significant potential liability for the school and its students. So she doesn’t quibble over the money.

“The ultimate goal is to teach and care and love the children,” she says. “And since they don’t yet have the self-protection skills an adult does, whatever it costs is worth it.”

Darren Dahl is a freelance writer, author and ghostwriter. He lives in Asheville, N.C.
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